[House Practice: A Guide to the Rules, Precedents and Procedures of the House]
[Chapter 22. Election Contests and Disputes]
[From the U.S. Government Printing Office, www.gpo.gov]
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CHAPTER 22 - ELECTION CONTESTS AND DISPUTES
HOUSE PRACTICE
Sec. 1. In General
Sec. 2. Jurisdiction and Powers
Sec. 3. Parties
Sec. 4. Consideration and Disposition
Sec. 5. -- Dismissal
Sec. 6. -- Debate and Voting; Amendment
Research References
U.S. Const. art. I, Sec. 5
1 Hinds Sec. Sec. 634-755
6 Cannon Sec. Sec. 90-189
Deschler Ch 9
Manual Sec. Sec. 701, 724, 853
Sec. 1 . In General
Contests for seats in the House are governed by the Federal
Contested Elections Act. 2 USC Sec. 381. This statute, enacted in
1969, sets forth the procedure by which a defeated candidate may have
his claim to a seat adjudicated by the House. The Act provides for the
filing of notice of contest and other proceedings, for the taking of
testimony of witnesses, and for a hearing by the Committee on House
Administration on the depositions and other papers that have been
filed with the Clerk. 2 USC Sec. Sec. 381-396. Acting on committee
reports, the House then disposes of the case by resolution. See
Sec. 4, infra.
The grounds for an election contest and the defenses available to
the contestee, as well as the process of taking testimony and other
procedures followed in determining the contest in committee, are
treated elsewhere. See Deschler Ch 9 and Ch 9 Appendix for complete
treatment of contested election cases from the 65th Congress (1917)
through the 92d Congress (1972).
Notwithstanding the availability of the statutory election-contest
procedures discussed herein, some election disputes have been
presented directly to the House for consideration and committee
investigation. See, e.g., H.
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Rept. 99-58. An investigation of a challenged election has been
initiated pursuant to:
An action by the House in directly referring to the Committee
on House Administration the question of a Member-elect's right
to a seat. Deschler Ch 2 Sec. 6.
A protest filed by an elector of the district concerned.
Deschler Ch 9 Sec. 17.1.
A petition filed by another person challenging the
qualifications of the Member-elect. Deschler Ch 9 Sec. 17.3.
The latter two procedures have rarely been invoked, however, and they
preceded the adoption of the modern contested election statute.
The right to a seat in the House also may be affected by House
action on a motion to expel, where a sitting Member's behavior or
conduct is at issue. See Ethics; Committee on Standards of Official
Conduct.
Sec. 2 . Jurisdiction and Powers
Generally
The Constitution authorizes each House to be the judge of the
elections, returns, and qualifications of its Members. U.S. Const.
art. I, Sec. 5. Thus, the House is entitled to judge contested
elections involving its seats, and is not bound by agreement of the
parties or decisions of State tribunals. 6 Cannon Sec. Sec. 90-92. The
determination by the House as to the right to a seat is final, being
considered a nonjusticiable political question. Roudebush v. Hartke,
405 U.S. 15 (1972).
Pursuant to the contested election statute, the House acquires
jurisdiction of an election contest upon the filing of a notice of
contest by a candidate. Deschler Ch 9 Sec. 4.1. Ordinarily, the papers
relating to the contest are transmitted by the Clerk to the Committee
on House Administration (the committee with jurisdiction over
elections contests under rule X clause 1(i)). Such transmission is
pursuant to the statute and needs no formal referral or other action
by the House. 2 USC Sec. 393(b); Deschler Ch 9 Sec. 4. However, the
House itself may initiate an election investigation if a Member-
elect's right to take the oath is challenged by another Member, by
referring the question to the committee. Deschler Ch 2 Sec. 6. The
House also may summarily dismiss a contest by resolution. Deschler Ch
9 Sec. Sec. 4.4, 4.5.
Where two persons claim the same seat from the same district, the
House may refuse to permit either candidate to take the oath pending a
determination of their rights by the House. Deschler Ch 9 Sec. 4.3.
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Election contests may be investigated by a special committee, by a
subcommittee of the Committee on House Administration, or by ad hoc
panels. Deschler Ch 9 Sec. Sec. 5.2-5.4.
Recounts of Votes
To obtain an order from the House for a recount of votes in an
election contest, the contestant should show that he has exhausted
remedies to secure a recount under State law and that evidence and
testimony have been taken in the matter. Deschler Ch 9 Sec. Sec. 41.1,
41.3. Although the committee with jurisdiction has authority to
require a recount of votes for a contested seat in the House, the
committee may decline to order such a recount where the highest court
of the State has conducted a recount and where the contestant has not
demonstrated that a recount would change the result of the election.
96-2, Mar. 4, 1980, pp 4490, 4491.
Sec. 3 . Parties
Under the controlling statute, ``a candidate for election'' to the
House ``in the last preceding election'' is given the right to
initiate a contest by filing the notice required by law. 2 USC
Sec. 382(a). The statute defines ``candidate'' to mean one whose name
was on the official ballot or who received write-in votes under
certain conditions. 2 USC Sec. 381(2). Thus, a candidate in the
primary whose name was not on the ballot in the general election lacks
the requisite standing to initiate a contest, and this was true even
under the predecessor contested election statute. Deschler Ch 9
Sec. 19.01. Similarly, the House has dismissed a contest filed by one
who was a candidate in a special election to fill a vacancy but was
not a candidate in a succeeding run-off election. 95-1, Oct. 27, 1977,
p 35408.
A lack of standing of a contestant to initiate the contest is a
defense that may be raised at the option of the contestee by motion. 2
USC Sec. 383(b).
Sec. 4 . Consideration and Disposition
Precedence and Privilege
Under article I, section 5 of the Constitution and rule IX, the
consideration of a contested election case constitutes a question of
privilege. 3 Hinds Sec. Sec. 2579, 2580, 2626. It takes precedence
over the consideration of veto messages from the President (5 Hinds
Sec. Sec. 6641, 6642), special orders (3 Hinds Sec. 2554), and
business in order on Calendar Wednesday (8 Cannon Sec. 2276).
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Reports and Resolutions
The House generally disposes of election contests by acting on a
resolution, which under the modern practice is reported from the
Committee on House Administration. Manual Sec. 724. A resolution is
used to dispose of the case even where dismissal has been stipulated
by the parties. Deschler Ch 9 Sec. 52.5.
Under rule XIII clause 5, committee reports relating to the right
of Members to their seats are privileged and are so reported from the
floor. Manual Sec. 853. Resolutions disposing of an election contest
also are questions of privilege and may be called up any time. 105-2,
Feb. 12, 1998, p ____. However, unreported resolutions are subject to
the notice requirement of rule IX. Manual Sec. 701; Deschler Ch 9
Sec. Sec. 42.3, 42.4.
The resolution may:
Declare one of the parties entitled to the seat. Deschler Ch 9
Sec. Sec. 42.2, 62.2.
Declare one of the parties not competent to bring the contest.
Deschler Ch 8 Sec. 13.1.
Declare that neither party be seated pending a committee
investigation. Deschler Ch 9 Sec. 42.15.
Declare the seat vacant. Deschler Ch 9 Sec. Sec. 42.11, 42.12.
Dispose of the contest upon expiration of a specified day.
Manual Sec. 701.
Dismiss the contest. See Sec. 5, infra.
Provide for payment or reimbursement from the contingent fund
for costs incurred in the contest or its investigation.
Deschler Ch 8 Sec. 13.4; Deschler Ch 9 Sec. Sec. 45.1-45.6; see
also 2 USC Sec. 396, permitting the committee to allow any
party reimbursement for reasonable expenses in the case.
Sec. 5 . -- Dismissal
A motion to dismiss will lie under the Federal Contested Elections
Act to permit the contestee to interpose certain defenses to the
contestant's claim or notice of contest. 2 USC Sec. 383(b). Such a
motion may be acted on by the House pursuant to a privileged
resolution reported from the Committee on House Administration. Manual
Sec. Sec. 850, 853.
Under this statute, the burden of proof is on the contestant to
present sufficient evidence, even before the formal submission of
testimony, to overcome the motion to dismiss. Deschler Ch 9 Sec. 35.7.
A motion to dismiss will lie where the contestant has not adduced
evidence or forwarded testimony in the manner prescribed by law or has
failed to demonstrate that there is some documentable basis for his
allegations. Deschler Ch 9 Sec. Sec. 25.1-25.5. Under the statute, the
contestant has the burden of proving sufficient evidence to show that
the result of the election would be changed or that the House should
conduct a complete recount. 95-1, May 9, 1977, p 13954; 99-
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1, Oct. 2, 1985, p 25665. Evidence that the contestant received more
votes than the contestee in a prior election is insufficient. 95-1,
Oct. 27, 1977, p 35408. Merely suggesting the probability of error in
the tabulation of votes, without offering evidence of a change in the
election result, is likewise insufficient. 95-1, May 9, 1977, p 13954.
Where the number of illegal votes shown by clear and convincing
evidence to have been cast in an election is less than the total
margin of victory of the contestee, the House may adopt the
recommendation of the Committee on House Administration dismissing the
election contest. The clear and convincing standard was used rather
than a proportionate reduction methodology that would have allocated
the illegal votes scientifically between the parties. 105-2, Feb. 12,
1998, p ____.
Sec. 6 . -- Debate and Voting; Amendment
Generally
Resolutions disposing of election contests have been determined by
voice vote and without debate. Deschler Ch 9 Sec. 42.5. Normally,
however, debate on the resolution is under the hour rule, with
extensions of time permitted by unanimous consent. The debate may be
divided among certain Members, with the previous question considered
as ordered at the conclusion thereof. Deschler Ch 9 Sec. Sec. 42.9,
59.1. The Member supporting the recommendation of the committee in the
contest is entitled to close debate. Deschler Ch 9 Sec. 42.8.
The resolution may be subject to a demand for a division of the
question if its form permits (Deschler Ch 9 Sec. 42.14) and to a
motion to recommit with instructions (Deschler Ch 9 Sec. 42.16). If
the manager of the resolution yields for an amendment, he loses the
floor to the proponent of the amendment. Deschler-Brown Ch 29
Sec. 30.8. The resolution is not subject to amendment unless the
Member controlling the time for debate yields for that purpose or the
previous question is voted down. Deschler Ch 9 Sec. 42.17. Where the
previous question is ordered on both the resolution of dismissal and
on the preamble, the preamble is not separately voted on or amended
except as part of a motion to recommit. 105-2, Feb. 12, 1998, p ____.
Participation by the Parties
If not a sitting Member, the contestant in an election contest may
be permitted on the floor under rule IV clause 2 during the
consideration of the case in the House but must abide by the rules of
proper decorum. Manual Sec. 622; Deschler Ch 4 Sec. 4.5; Deschler Ch 9
Sec. 42.6. Furthermore, such
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contestant is not allowed to participate in the debate absent an order
of the House. 1 Hinds Sec. Sec. 662, 666.
A contestee, if a sitting Member, may participate in debate on the
resolution disposing of the contest or insert remarks in the
Congressional Record. Deschler Ch 9 Sec. Sec. 42.6, 42.7; 105-2, Feb.
12, 1998, p ____. Such contestee also may vote on the resolution. 99-
1, Oct. 2, 1985, p 25670.